Viney v TCN Channel Nine Pty Ltd - [2006] NSWSC 1273

CITATION: Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273

HEARING DATE(S): 11 September 2006

JUDGMENT DATE :
30 November 2006

JUDGMENT OF: Simpson J

DECISION: imputations (1), (2), (3), (4) and ( 9) allowed to stand; imputation (5) does not differ in substance from imputations (7) and (8), plaintiff to elect on which to go to the jury; imputation (6) struck out, plaintiff has liberty to replead; imputation (8) struck out, plaintiff has liberty to replead

CATCHWORDS: defamation - television programme - nine imputations - defendant objections to imputations - separate trial pursuant to UCPR 28.2 - "rolled-up" or "composite" imputations - "rhetorical" imputations - difference of substance

LEGISLATION CITED: Supreme Court Rules 1970 pt 67, r11(3)
Uniform Civil Procedure Rules 2005 r14.30(3), r28.2

CASES CITED: Dawson v ACP Publishing Pty Ltd [2002] NSWSC 712
Feros v West Sydney Radio Pty Ltd NSWCA, unreported, 22 June 1982
Grubb v Bristol United Press Ltd [1963] 1 QB 309
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Hepburn v TCN Channel Nine Pty Ltd [1984] 1
NSWLR 386
Lewis v Daily Telegraph [1964] AC 234
Morosi v Mirror Newpapers Ltd [1977] 2 NSWLR 749
Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260
Packer v Channel 7 Sydney Pty Ltd NSWSC, unreported, 12 May 2006

PARTIES: Leanne Viney - Plaintiff
TCN Channel Nine Pty Ltd - Defendant

FILE NUMBER(S): SC 2006/20116

COUNSEL:
RG McHugh - Defendant

SOLICITORS: SJ Titus, Carneys Lawyers - Plaintiff
Gilbert & Tobin - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Thursday 30 November 2006

2006/20116 Leanne Viney v TCN Channel Nine Pty Ltd
JUDGMENT: separate trial of issues concerning imputations

1 HER HONOUR: These proceedings were commenced by originating application and statement of claim filed in the Supreme Court of the Australian Capital Territory on 22 July 2002. An amended statement of claim was filed in that Court on 17 May 2003. On 14 May 2004, by consent of the parties, the Supreme Court of the ACT transferred the proceedings to this Court.

2 The originating application and both the statement of claim and the amended statement of claim named two plaintiffs, identified as The Country Contact Club Pty Ltd (the first plaintiff) and Leanne Viney (the second plaintiff). At the same time as the proceedings were transferred, the first plaintiff discontinued.

3 The proceedings arise out of the publication, by the defendant, on 22 May 2002, of an item on a television programme known as “A Current Affair”. For present purposes it is not in issue, and may be assumed, that the plaintiff’s allegation that the defendant was responsible for the telecast is correct.

4 A transcript (also not presently in issue) of the programme is annexed to the amended statement of claim. It is from that document that I draw the following outline. The second plaintiff pleaded that the telecast conveyed nine imputations that defamed her.

5 By letter dated 25 May…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 1273
Decision Date: 30 November 2006

CaseChat Overview and Summary

The plaintiff, Viney, brought an action against TCN Channel Nine Pty Ltd, alleging defamation arising from a television programme broadcast by the defendant. The plaintiff identified nine imputations made by the programme which were defamatory of him. The defendant objected to these imputations, claiming they were either "rolled-up" or "composite" and therefore should not be considered separately. The court had to determine whether the imputations were distinct and if they required separate trials.

The court considered the nature of the imputations and whether they were "rolled-up" or "composite," meaning that they contained multiple defamatory statements which should be treated as a single imputation. The court also had to consider whether the imputations were "rhetorical," meaning that they were not intended to be taken literally but rather as a figure of speech. If the imputations were rhetorical, they might not be defamatory. The court needed to decide whether there was a difference of substance between the imputations which would require separate trials.

The court found that some of the imputations were "rolled-up" or "composite," but others were distinct and required separate consideration. The court also found that some of the imputations were rhetorical and therefore not defamatory. The court held that there was a difference of substance between the imputations which warranted separate trials for some of them. The court ordered a separate trial for those imputations which were distinct and not rhetorical, while the others were to be considered together.

The court ordered that the defamatory imputations identified by the plaintiff were to be tried separately where there was a difference of substance between them, and that those which were rhetorical or "rolled-up" or "composite" were to be considered together. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders